Germany to Regularize "Tolerated" Asylum Seekers

April 5, 2007

Feature

By Eric Leise

Germany's policymakers reached an agreement in March 2007 that will provide residency permits for asylum seekers whose applications were denied in the 1990s but whose deportations have been deferred for legal or economic reasons.

These asylum seekers possess a "tolerated" (Duldung) status that bars them from possessing regular employment, moving freely within Germany, and accessing most welfare programs.

Officials estimate that 170,000 of these tolerated asylum seekers are currently living in Germany and that approximately 50,000 will qualify for a residency permit under the new law. Other groups have said there are 180,000 tolerated asylum seekers, of which 60,000 would benefit from the new law.

Policymakers have sought to provide the tolerated asylum seekers, who are essentially living in limbo, with residency permits in an effort to 1) relieve the financial burden of providing them welfare assistance, and 2) to bring their status into compliance with the new residency guidelines laid out in the 2005 Immigration Act, which no longer allows for a tolerated status.

Background

A majority of the tolerated asylum seekers currently living in Germany arrived in the early- and mid-1990s when Germany received an unprecedented number of asylum applications. In 1991, 256,112 people applied for asylum in Germany. This number increased 71 percent to 438,191 in 1992, dropping to 300,000 in 1993 (see Figure 1).

Figure 1. Total Number of Asylum Applications in Germany, 1980 to 2006

UNHCR statistics

In 1992, 35 percent of the asylum applicants in Germany arrived from the former Soviet Union, Bulgaria, Romania, Poland, and the current Czech and Slovak Republics, while 26 percent of the asylum applicants arrived from the former Yugoslav republics (see Figure 2).

Figure 2. Asylum Applications Filed in Germany by Country of Origin, 1992

Germany became a preferred destination for asylum seekers from destabilized regions in Eastern Europe and the Balkan peninsula because of its geographic proximity as well as its asylum laws. Article 16a in Germany's Basic Law states that "Persons persecuted on political grounds shall have the right of asylum." In practice, Germany in the early 1990s guaranteed liberal asylum allowances relative to the asylum practices of other EU Member States.

Regularization in 1990

Regularizing the residency status of tolerated asylum seekers is not new in Germany. In 1990, the German parliament passed reforms to the Foreigners' Law that granted an unconditional right of residency to all asylum seekers, except those with a criminal record, who had lived in Germany for more than eight years by 1990.

This piece of legislation came at a time, like today, when Germany had a large stock of tolerated asylum seekers. In 1990, most of these asylum seekers were from Turkey and Poland. This move to regularize the tolerated asylum seekers came on the heels of German reunification when Germany was renegotiating many of its laws, including those pertaining to immigration.

However, policymakers did not remove the category of "tolerated" from the law, allowing future asylum seekers to fall into the same tolerated status if their applications were denied. In 1992, an estimated 78,487 tolerated asylum seekers lived in Germany.

Following the move to offer tolerated asylum seekers residency permits in 1990, the German government responded to the early-1990s influx of asylum applicants by reforming the asylum law in 1992. This reform is popularly known as the "asylum compromise," which upheld the right to asylum in Germany out of humanitarian concerns and introduced safe-third-country and safe-country-of-origin policies into the new asylum procedures.

The safe-third-country policy requires an asylum seeker passing through a safe third country before arriving in Germany to be denied asylum and sent back to the first safe country. Safe countries include all EU Member States, Norway, and Switzerland.

The safe-country-of-origin policy instructs German authorities to reject any application from an asylum seeker coming from a country listed as "safe," or where the German government does not find a risk of persecution.

After 1993, the number of applications began to decline due partly to more restrictive asylum policies and procedures. In 1994, the number of applications dropped to less than 130,000. In 2000, the number of asylum applications stood at 78,564 and has steadily decreased to 21,029 in 2006.

New Regularization Efforts

Currently, tolerated asylum seekers live on minimum state assistance, do not have access to the labor market, and are required to live in state-run housing complexes. Although their children are expected to attend school, neither the children nor the parents receive assistance with learning German.

In order to limit their ability to establish themselves in Germany and make contacts outside their community, tolerated asylum seekers are not allowed to leave the immediate area in which they live.

These policies not only make it difficult to learn German and to integrate, but they actually make it necessary to build networks by other means, such as illegal work schemes, in order to survive.

In November 2006, Germany's interior ministers agreed to grant residency permits to a portion of the tolerated asylum seekers in order to decrease the state's financial burden.

Germany's Vice Chancellor, Franz Müntefering, put forth a plan that proposed regularization for tolerated asylum seekers by granting them a two-year grace period to meet the criteria for receiving a right to residency. However, Minister of the Interior Wolfgang Schäuble rejected any plan without strict and immediate deadlines to qualify for regular residency status.

The ministers reached a consensus in March 2007 after Müntefering acquiesced to Schäuble's demand for more immediate deadlines by agreeing to grant a temporary right of residency to the tolerated asylum seekers who have resided in Germany for 8 years, or 6 years if they have children, by July 1, 2007.

Approximately 50,000 of the 170,000 tolerated asylum seekers are expected to qualify for this temporary residency status. Once they receive this temporary residency permit, they will qualify for permanent residency status if they meet the following criteria by the end of 2009:

Clean criminal record

Independent financial security

Regular employment

High level of integration into German society (demonstrated primarily through German language abilities)

Adequate living quarters according to the size of the family

Regular school attendance for the family's children

As part of the final agreement, the amount of social assistance that German states must provide tolerated asylum seekers was also reduced.

Only a portion of the estimated 50,000 tolerated asylum seekers who will qualify for the temporary permit are expected to find regular employment and meet the remaining criteria to receive a permanent residency permit when the two-year grace period ends in 2009.

Those who receive a permanent residency permit will gain greater access to public services in Germany. But, in order to maintain this status, they will also need to attend German language and culture courses in accordance with new integration measures. If they successfully complete these courses, their residency in Germany will be far more secure and their chances of becoming German citizens far greater than if they continued residing in Germany with a tolerated status.

On the other hand, the 120,000 tolerated asylum seekers who do not qualify for a preliminary residency permit in July 2007 will have to continue renewing their tolerated status every three months. Their cases will not be resolved until the authorities determine how to repatriate them or pass another, similar round of legislation to grant them regular residency status.

From the government's point of view, the policy will achieve two goals: reducing the number of asylum seekers residing in Germany and getting the remaining ones employed — and out of the welfare system.

The new policy places emphasis on integrating tolerated asylum seekers into the labor market. But it ignores the fact that some employers will discriminate against asylum seekers, decreasing the likelihood that they will find suitable employment.

Since the consequence for unemployed tolerated asylum seekers is deportation, some analysts believe it is far more likely that they will disappear into clandestine communities once the grace period ends in 2009. If this occurs, then the policy may result in a reduced number of tolerated asylum seekers at the expense of a larger population of illegal residents.